by Mark Wilson

 The Oregon Supreme Court held that the Legislature intended that if the state aggregates multiple identity thefts to serve as the basis for an aggravated identity theft, the identity thefts are lesser-included offenses of the aggravated identity theft and must merge for purposes of sentencing.

A person commits identity theft under Oregon law by possessing another person’s personal identification with intent to deceive or defraud. Identity theft is a Class C felony. A person commits the crime of aggravated identity theft if the person possesses or controls 10 or more pieces of personal identification of 10 or more people. Aggravated identity theft is a Class B felony. Merger is required under ORS 161.067(1) when the same conduct violates two statutory provisions and all the elements of one of the provisions are included in the other.

During a traffic stop, Viktor Gensitskiy consented to a search of his vehicle, resulting in the discovery of 27 files he had taken from an apartment complex rental office. Each file contained the personal identification of at least one person.

Gensitskiy was charged with one count of aggravated identity theft and 27 counts of identity theft. The aggravated identity theft charge was based on the conduct underlying the identity theft counts.

Pursuant to a plea agreement, Gensitskiy pleaded guilty to all counts. He argued that the identity theft convictions merge into the aggravated identity theft conviction for purposes of sentencing. The State did not dispute that each identity theft was a lesser-included offense of the aggravated identity theft, but argued instead that there should be 27 convictions because there were 27 victims. The trial court agreed with the prosecution and entered separate convictions for aggravated identity theft and each identity theft.

Following an extensive statutory construction analysis, the Oregon Supreme Court concluded that “the legislature intended that, if the state aggregates multiple identity thefts to serve as the basis for an aggravated identity theft, the identity thefts are lesser-included offenses of the identity theft.”

In that situation, ORS 161.067(1) requires merger of the lesser-included offenses into the greater offense. Accordingly, the court held “that the trial court erred in failing to merge defendant’s multiple identity thefts into his aggravated identity theft.” See: State v. Gensitskiy, 365 Or 263, _ P3d _ (Or 2019).

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